Misfeasance in public office

March 5th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

Young v Chief Constable of Warwickshire (2020) EWHC 308 (QB) recites the applicable principles in relation to the tort (and crime) of misfeasance in public office. There are four ingredients: (1) the defendant must be a public officer; (2) the conduct complained of must be in the exercise of public functions; (3) malice; and (4) damage.

Malice, the requisite state of mind, is either “targeted malice” or “untargeted malice”.

For “targeted malice”, the conduct is specifically intended to injure a person or persons. This type of case involves bad faith, in the sense of the exercise of a public power for an improper or ulterior motive.

For “untargeted malice”, the public officer acts knowing that he/she has no power to do the act complained of, or acts with “reckless indifference” as to the lack of such power and knows that the act will probably injure the claimant. Read more »

 

Inducing Breach of Contract

February 28th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The issue in Allen v Dodd (2020) EWCA Civ 258 was what amounts to a sufficient state of mind to make a person liable in tort for inducing a breach of contract and causing loss by unlawful means. To be liable for inducing a breach of contract, you must know that you are inducing a breach. Negligence, even gross negligence, is not enough. Mere suspicion is not enough. The touchstone is knowledge.

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Unjustified Enrichment

February 21st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Vodaphone v OFCOM (2020) EWCA Civ 183,  the Court of Appeal has held that assessment of a claim for restitution, under the principle in Woolwich Equitable BS v IRC (1993) AC 70, that a public authority could not retain a fee collected without lawful authority, did not involve consideration of any counterfactual situation.

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Vicarious Liability

February 21st, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Haringey LBC v FZO (2020) EWCA Civ 180,  the Court of Appeal held that the Council, which was the employer of a teacher, was vicariously liable for the teacher’s acts in grooming and sexually abusing a 13-year old pupil during his school years and thereafter, but in the teacher’s private time and not at school.  The Court addressed not only vicarious liability, but also limitation, “consent” (conditioned consent, resulting from a grooming process, was not true consent), and causation.

 

Director of Company as Joint Tortfeasor

February 6th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

There is liability as a joint tortfeasor if (1) someone has acted in a way that assists the commission of the tort by the primary tortfeasor and (2) he/she did so pursuant to a common design to do or assist with the acts that constituted the tort. Whether that test is met in a particular case is a fact sensitive assessment that will turn on all the relevant circumstances. That law has been restated and applied in Red Bull v Big Horn (2020) EWHC 124 (Ch), at paragraphs 45-48 inclusive, where the primary tortfeasor was a company, and the issue was as to the personal liability of a director. The Judge said that the fact that the alleged tortfeasor was a director of the primary tortfeasor did not exclude liability, nor did it establish that the conditions for joint liability were met. There was liability in this action in the case of the sole director and entirely controlling mind of the company who was directly responsible for the activities and actions of his company vehicle.

 

Dishonest Assistance

February 4th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

On (1) what is required in order to establish a claim for dishonest assistance, (2) whether to order a retrial, and (3) the limitations on the ability of an appellate court to interfere with a discretionary decision of a lower court, see MAGNER v RBS (2020) UKPC 5.

 

Legal Certainty and Limitation

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In FMX v HRMC (2020) UK SC 1 the Supreme Court considered the fundamental principle of legal certainty of general application in EU law.  This includes that where national legislative provisions appear to allow legal action without any time limit, then the principle of legal certainty requires it to be done within a reasonable time (paragraph 45, per Lord Briggs).

 

Restitution/Compromise Agreement/Mistake

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Elston v King (2020) EWHC 55 (Ch) the Court considered the situation where a party seeks to set aside a compromise agreement on grounds of common mistake where the compromise was based on a view of the law that was later overturned.  Marcus Smith J said:-

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Legal Advice Privilege

January 30th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

In Civil Aviation Authority v R (ota Jet2.Com Ltd) and the Law Society  (2020) EWCA 35 the Court of Appeal considered when Legal Advice Privilege (“LAP”) is attracted, and affirmed that a claim for LAP requires the proponent of LAP to show that the relevant document, or communication, was created for the “dominant Purpose” (as opposed to one purpose) of obtaining legal advice.  Hickinbottom LJ with whom Patten and Peter Jackson LJJ agreed, considered authorities including Three Rivers (No. 5) and Eurasian, and said:-

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Persons Unknown

January 24th, 2020 by James Goudie QC in Judicial Control, Liability and Litigation

The Court of Appeal, in Cuadrilla Bowland Ltd v Persons Unknown (2020) EWCA Civ 9, held, doubting, at paragraphs 46-51 inclusive and 66-69 inclusive, Boyd v Ineos Upstream Ltd (2019) EWCA Civ 515, and in the context of non-violent protest, that the fact that an injunction against ‘persons unknown’ referred to the requirement for an ‘intention’ to impede lawful activities did not render the injunction insufficiently clear or certain to be enforceable by committal to prison following a breach. “Intention” did not have any special legal meaning and was not difficult for a member of the public to understand. On an appeal by persons unknown against committal to prison for contempt of court for breach of an injunction to prevent trespass on the respondents’ land and unlawful interference with their rights. The respondents owned land on which they engaged in lawful “fracking”. The appellants were environmental protesters involved in protests on and near the respondents’ site. Read more »